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(2.) Nothing in this section shall affect the law relating to the sale of horses.1

(3.) The provisions of this section do not apply to Scotland.

The rules of market overt do not apply in Scotland or the United States, and in England they only apply to a limited class of retail transactions. All shops in the city of London are market overt, for the purposes of their own trade, but a wharf in the city is not market overt, and a sale by sample is not within the custom because the whole transaction must take place in the open market, and not merely the formation of the contract.3 So, too, a sale of jewelry to a tradesman in his show-room is not within the custom.4 Outside the city of London markets with the custom of market overt may exist either by grant or prescription, but it seems that the custom does not apply to a market established by a local Act.5

Sect. 24 is not in the nature of an exception or proviso to this section. When stolen goods are sold in market overt, the property passes to the buyer, though on the conviction of the thief the property revests in the original owner by force of the statute (24 & 25 Vict, c. 96, s. 100). Hence an intermediate purchaser incurs no liability; " so, again, the buyer who is dispossessed cannot charge for the keep of the goods, for they were his own till the statute revested them in the original owner.7

Sect. 22.

Horses.

23. When the seller of goods has a voidable title Sale under thereto, but his title has not been avoided at the time of

Cases, 3rd ed., p. 274, and notes; Crane v. London Dock Co. (1861), 33 L. J. Q. B. 221; see per Blackburn, J., at p. 229, as to the usage of the market; Benjamin on Sale, 4th ed., p. 9; cf. Vilmont v. Bentley (1886), 18 Q. B. D. 322, at p. 331.

See the 2 & 3 Phil. & Mar. c. 7, and 31 Eliz. c. 12, set out, post, pp. 143, 146; also Moran v. Pitt (1873), 42 L. J. Q. B. 47. The practical effect of these Acts is to take horses out of the rule as to market overt. 2 Wilkinson v. King (1809), 2 Camp. 335.

Crane v. London Dock Co. (1864), 33 L. J. Q. B. 224.

Hargreave v. Spink (1891), 1 Q. B. 25.

5 Cf. Moyce v. Newington (1878), 4 Q. B. D., at p. 34, per Cockburn, C.J.; and see Lee v. Bayes (1856), 18 C. B. 599; 25 L. J. C. P. 249 (sale by auction at horse repository).

Horwood v. Smith (1788), 2 T. R. 750; cf. Vilmont v. Bentley (1886), 18 Q. B. D. 322, at p. 331.

7 Walker v. Matthews (1881), 8 Q. B. D. 109.

voidable

title.

Sect. 23.

Revesting

the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect of title.1

See "good faith" defined by sect. 62, post, p. 121. Many of the cases covered by this section would also fall within sect. 25, post, p. 58.

Where goods have been obtained by means amounting to larceny, the thief has no title, and can give none, except by selling in market overt; but where goods have been obtained by fraud the person who has so obtained them may either have no title at all, or a voidable title, according to the nature of the transaction. If the nature of the fraud be such that there never was a contract between the parties, as, for instance, if A. obtains goods from B. by falsely pretending to be X., then the person who so obtains the goods has no title at all and can give none.2

But if the person defrauded really intended to part with the property in, and possession of the goods, although induced to do so by fraud, there is a contract which he may affirm or disaffirm at his election. Hence, the person who obtains the goods has a voidable title, and can give a good title to an innocent purchaser while the matter is in suspense. "If," says Lord Cairns," the chattel has come into the hands of the person who professel to sell it, by a de facto contract, that is to say, a contract which has purported to pass the property to him from the owner of the property, then the purchaser will obtain a good title, even although afterwards it should appear that there were circumstances connected with that contract which would enable the original owner of the goods to reduce it, and set it aside." 5

24.—(1.) Where goods have been stolen and the offender of property is prosecuted to conviction, the property in the goods

in stolen,

&c., goods on conviction of offender. [Cf. 24 & 25 Vict. c. 96,

s. 100,

post, p. 159.]

1 White v. Garden (1851), 10 C. B. 919; 20 L. J. C. P. 166; Kingsford v. Merry (1856), 25 L. J. Ex. 166, reversed on another ground, 26 L. J. Ex. 83; Pease v. Gloahec (1866), L. R. 1 P. C. 219, at pp. 229, 230; Cundy v. Lindsay (1878), 3 App. Cas. 459, at p. 464, per Lord Cairns; Pollock on Possession, pp. 203, 204.

2 Higgons v. Burton (1857), 26 L. J. Ex. 342; Hardman v. Booth (1863), 32 L. J. Ex. 105; Cundy v. Lindsay (1878), 3 App. Cas. 459; Pollock on Possession, p. 111; Ex p. Barnett (1876), 3 Ch. D. 123.

3 Clough v. Lond. and N. W. Railway (1871), L. R. 7 Ex. 26; cf. Morrison v. Univ. Ins. Co. (1873), L. R. 8 Ex., at pp. 203, 204.

4 Croft v. Lumley (1856), 6 H. of L. Cas., at p. 705, Bramwell, B.
'Cundy v. Lindsay (1878), 3 App. Cas., at p. 464.

so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any, intermediate dealing with them, whether by sale in market overt, or otherwise.1

(2.) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender.

(3.) The provisions of this section do not apply to Scotland.

The rule, that on the conviction of the thief the property in stolen goods revested in the original owner, is as old as the 21 Hen. VIII. c. 11, which was perhaps declaratory. The effect of sect. 100 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), was to extend the rule to all offences under that Act. The operation of the extended rule to cases where goods had been obtained by false pretences, but under a de facto contract, was anomalous, and was regretted by the Lords in Bentley v. Vilmont.2 Sub-sect. (2) was accordingly introduced as an amendment in Committee. Its effect is to restore the old state of the law and to override sect. 100 of the Larceny Act, 1861 (and sect. 27 (3) of the Summary Jurisdiction Act, 1879), so far as it relates to offences other than offences amounting to larceny.

By sect. 62 of this Act, post, p. 117, the expression "goods" does not include money. But a current coin, e.g. a five-pound gold piece, sold as a curiosity, may be treated as goods and not as money.3

It is to be noted that the rule laid down in this section is not strictly an exception to the rule laid down in sect. 22 (ante, p. 54). By a sale in market overt, the property in the goods really vests in the buyer, though on conviction of the offender it revests in the

1 Benjamin on Sale, 4th ed., pp. 11, 12; Stone's Justices' Manual, 24th ed., p. 782; Horwood v. Smith (1788), 2 T. R. 750; Scattergood v. Sylvester (1850), 15 Q. B. 506; 19 L. J. Q. B. 447.

2 Vilmont v. Bentley (1886), 18 Q. B. D. 322, C. A.; affirmed Bentley v. Vilmont (1887), 12 App. Cas. 471, overruling Moyce v. Newington (1878), 4 Q. B. D. 32.

3 Moss v. Hancock (1899), 2 Q. B. 111.

Sect. 24.

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Sect. 24. original owner by force of the statute. Hence, if the goods pass through several hands, intermediate parties are not guilty of a conversion. As a general rule, no one can give a better title to goods than he has got. This section is only required in the exceptional cases where a good title to stolen goods is obtained by purchase in market overt or otherwise," e.g. by a purchase abroad, valid according to the lex loci. In Payne v. Wilson it was held that a title to stolen goods under the Factors Act, 1889, was paramount to the right of restitution under this section, but on appeal the judgment was abandoned on the ground that the facts did not bring the case under the Factors Act.1

Seller in possession after sale.

[52 & 53

Vict. c. 45, s. 8.]

Buyer in

possession.

[52 & 53 Vict. c. 45, s. 9.]

Sect. 100 of the Larceny Act, 1861 (post, p. 159), enables the convicting Court to make an order for restitution; but, as the effect of the statute is to revest the property, the original owner has his ordinary legal remedies without resorting to this special one.

By art. 2279 of the French Civil Code, lost or stolen goods may be recovered by the true owner at any time within three years, but by art. 2280, if the actual possessor obtained them at a public auction or by a sale in the ordinary course of business, the original owner can only get them back on paying the possessor the sum he gave for them.

25.—(1.) Where a person, having sold goods, continues, or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same.

(2.) Where a person, having bought or agreed to buy goods, obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title,

Payne v. Wilson (1895), 1 Q. B. 653, reversed (1895), 2 Q. B. 537, C. A.

under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.

(3.) In this section the term "mercantile agent" has the same meaning as in the Factors Acts.

Illustration.

A. sells certain copper. to B., forwarding bill of lading indorsed in blank, and bill of exchange for acceptance. B., who is insolvent, does not accept the bill of exchange, but transfers the bill of lading to X. in fulfilment of a contract to supply him with copper. X. in good faith pays the price. A. cannot stop the copper in transitu.1

By sect. 62, post, p. 116, "Factors Acts" mean the Factors Act, 1889, and the Factors (Scotland) Act, 1890, which are set out, post, pp. 124, 142, and "document of title" has the same meaning as in those Acts. For definitions of "document of title " and " mercantile agent" by the Factors Acts, see post, pp. 126, 127.

This section reproduces, with a modification,2 sects. 8 and 9 of the Factors Act, 1889, which came into operation on the 1st of January, 1890. See post, pp. 134, 135, where the effect of these provisions is considered.

In a case where wine stored in a warehouse was sold, and the seller afterwards pledged the wine to the warehouseman, who had no notice of the sale, North, J., held that the warehouseman acquired no title under sub-sect. (1), for as between the particular parties, the seller was not in possession when he effected the pledge.3

It was originally intended to repeal the sections which are here reproduced, but they were omitted from the repeals at a late stage

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1 Cahn v. Pockett's Bristol Channel Co. (1899), 1 Q. B. 643, C. A. 2 i.e. After “sale, pledge, or other disposition thereof," in sub-sects. (1) and (2) the further words, or under any agreement for sale, pledge, or other disposition thereof," are omitted. The change was made in the Lords Committee.

3 Nicholson v. Harper (1895), 2 Ch. 415.

Sect. 25.

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